The relevant facts are undisputed.
Defendant was convicted of criminally negligent homicide for causing the death
of the decedent.(1) ORS 163.145. The
decedent had a life insurance policy payable to his brother, Faulkner.
Although the policy did not include a benefit for the decedent's funeral
expenses, at Faulkner's request, the funeral home billed the insurer for those
expenses. Faulkner explained that "we had to come up with the money
to--to pay for the funeral. So what we did is we asked the funeral people to
bill the insurance company, since we had a life insurance policy." The
bill from the funeral home lists Faulkner's name and address and reflects that
the bill was paid in full. The insurer paid the funeral home directly and then
paid the remainder of the policy benefit to Faulkner.

Following a restitution hearing, the
trial court ordered defendant to pay restitution but, despite finding the
amount of the funeral expenses to be reasonable, did not include the funeral
expenses in the restitution order. The court concluded that Faulkner did not
incur economic damages as a result of defendant's criminal acts, because the
decedent eventually would have had funeral expenses, whenever and however he
died, and that Faulkner would have paid those expenses.

This case presents questions of statutory
construction, which we resolve by applying the principles set out in State
v. Gaines, 346 Or 160, 206 P3d 1042 (2009), and PGE v. Bureau of Labor
and Industries, 317 Or 606, 859 P2d 1143 (1993). In determining the
meaning of a statute, we attempt to ascertain what the legislature most likely
intended. We begin by examining the text of the statute in context, along with
any relevant legislative history offered by the parties. Gaines, 346 Or
at 171-72.

ORS 137.106(2)
requires that restitution be ordered when a victim has suffered economic
damages:

"(1) When a person is convicted of a crime
* * * that has resulted in economic damages, the district attorney shall
investigate and present to the court, prior to the time of sentencing, evidence
of the nature and amount of the damages. If the court finds from the evidence
presented that a victim suffered economic damages, in addition to any other
sanction it may impose, the court shall:

"(a) Include in the judgment a requirement
that the defendant pay the victim restitution in a specific amount that equals
the full amount of the victim's economic damages as determined by the court; or

"(b) Include in the judgment a requirement
that the defendant pay the victim restitution, and that the specific amount of
restitution will be established by a supplemental judgment based on a
determination made by the court within 90 days of entry of the judgment. In
the supplemental judgment, the court shall establish a specific amount of
restitution that equals the full amount of the victim's economic damages as
determined by the court. * * *

"* * * * *

"(4) If a judgment or supplemental
judgment described in subsection (1) of this section includes restitution, a
court may delay the enforcement of the monetary sanctions, including
restitution, only if the defendant alleges and establishes to the satisfaction
of the court the defendant's inability to pay the judgment in full at the time
the judgment is entered. If the court finds that the defendant is unable to pay,
the court may establish or allow an appropriate supervising authority to
establish a payment schedule, taking into consideration the financial resources
of the defendant and the burden that payment of restitution will impose, with
due regard to the other obligations of the defendant."

"(a) The person against whom the defendant
committed the criminal offense, if the court determines that the person has
suffered economic damages as a result of the offense.

"(b) Any person not described in
paragraph (a) of this subsection whom the court determines has suffered
economic damages as a result of the defendant's criminal activities.

"(c) The Criminal Injuries Compensation
Account, if it has expended moneys on behalf of a victim described in paragraph
(a) of this subsection.

"(d) An insurance carrier, if it has
expended moneys on behalf of a victim described in paragraph (a) of this
subsection."

(Emphasis added.) ORS 137.103(2) provides that "'[e]conomic
damages' has the meaning given that term in ORS 31.710, except that 'economic
damages' does not include future impairment of earning capacity." ORS
31.710(2)(a) provides, in turn:

Thus, under ORS 137.106, the question
is whether Faulkner is "a victim" who "suffered economic
damages"; if so, the court must require "restitution in a specific
amount that equals the full amount of the victim's economic damages."
Under ORS 137.103(4)(b) and ORS 31.710(2)(a), Faulkner is a victim if he
suffered economic damages--including reasonable charges necessarily incurred
for burial and memorial expenses--as a result of defendant's criminal
activities.

There is no dispute that the funeral
expenses at issue here were "reasonable charges" for "burial and
memorial services" within the meaning of ORS 31.710(2)(a). The parties
disagree, however, about whether the expenses were "necessarily
incurred" under that statute. The state contends that the legislature
chose to make a defendant responsible for funeral expenses when the defendant's
criminal activities cause a death. Defendant argues that Faulkner did not
"incur" funeral expenses at all, because he was not billed for them
and because, given that the decedent's death triggered the insurance benefit
that was used to pay for the funeral, Faulkner was not worse off financially
because of the decedent's death.

Defendant's argument is foreclosed by
White v. Jubitz Corp., 347 Or 212, 219 P3d 566 (2009), in which the
Supreme Court considered the same statutory definition of "economic
damages" in the context of a negligence claim. There, the
defendant--citing a dictionary defining "incur" as "[t]o become
liable or subject to," id. at 232 n 11 (brackets in White)--contended
that the plaintiff had not "incurred" a "monetary loss"
with respect to medical charges that had been written off as a result of the
plaintiff's eligibility for Medicare benefits. Id. at 232. Among other
reasons for rejecting the defendant's argument, the court explained:

"A plaintiff who is injured and who obtains necessary
medical treatment becomes 'liable or subject to' reasonable charges for that
treatment and thereby 'incurs' them. ORS 31.710 does not require that a
plaintiff also pay or otherwise satisfy those charges. Whether or by what
means the plaintiff or a third party satisfies medical charges is a matter
between the plaintiff, the third party, and the medical providers. ORS
31.710 does not make a plaintiff's right to assert a claim for economic damages
against a tortfeasor dependent on those arrangements."

Id. at 234 (emphasis added).

Similarly here, the decedent died as
a result of defendant's conduct, and Faulkner obtained necessary funeral
services. The billing arrangements for the decedent's funeral expenses are a
matter between Faulkner, the insurer, and the funeral home. Regardless of the
source of the funds used to pay for the decedent's funeral, when Faulkner
obtained funeral services for the decedent, Faulkner became subject to charges
for those services and thus incurred the charges. The funeral expenses were
economic damages under ORS 31.710.

Defendant contends, however, that for
an expense to be "necessarily incurred" within the meaning of the
statute, that expense must be one that the victim was required to pay, not one
that the victim volunteered to pay. In defendant's view, because Faulkner
chose to pay for the funeral, Faulkner did not "incur" damages and
therefore is not a "victim." We rejected a related argument
concerning the meaning of "incur" in PGE v. Jungwirth Logging,
Inc., 151 Or App 789, 951 P2d 1101 (1997), rev den, 327 Or 432
(1998). There, the plaintiff had settled a negligence suit brought by the
estate of the defendant's employee, who was electrocuted by one of the plaintiff's
high-voltage power lines in an on-the-job accident. Id. at 791. After
settling with the estate, the plaintiff sued the defendant under a statute
providing that, if a person or business violates safety rules concerning
operations near high-voltage power lines and the violation results in or is a
contributing cause of an accident, the person or business is liable to the
utility for "all costs and expenses, including damages to any third
persons, incurred by the utility as the result of the accident." Id.
(emphasis omitted). The defendant argued that the plaintiff
"incurred" costs and expenses only if it was liable to the employee's
estate. Noting that the common meaning of "incur" is "to become
liable or subject to," we concluded that the plaintiff had incurred
the settlement costs because, but for the defendant's actions, the plaintiff
"would not have been subject to resolving [the employee's estate's] action
through settlement or litigation." Id. at 793; see also
Anderson v. Wheeler, 214 Or App 318, 322, 164 P3d 1194 (2007) (construing
"incurred" in an attorney fee statute to mean to "become liable
or subject to" and thus to require that the party seeking fees be liable
for the payment of fees).

More recently, in State v. Romero-Navarro, 224 Or App 25, 29, 197 P3d 30 (2008), rev den, 348
Or 13 (2010), we relied on that definition of "incur" in concluding
that the defendant was properly ordered to pay restitution for funeral
expenses. There, the defendant was convicted of first-degree manslaughter for
killing a 17-year-old child, and the state sought restitution, payable in part
to the child's parents and in part to the Criminal Injuries Compensation
Account (account), for funeral expenses. Id. at 27. The defendant
argued that, because the child's father's employer had paid most of those
expenses and the account had paid the remainder, the parents had not incurred
the expenses. Id. at 28. Rejecting that argument, we explained that
"[t]here is a reasonable inference from the record that the victim's
family was subjected to the enumerated burial expenses for their child,
and would have had to pay them if the employer had not paid them." Id.
at 29 (citing White v. Jubitz Corp., 219 Or App 62, 66, 182 P3d 215
(2008), aff'd, 347 Or 212, 219 P3d 566 (2009)).

Here, likewise, the record shows that
Faulkner was subjected to the decedent's burial expenses. Faulkner's testimony
and the bill from the funeral home indicate that he had agreed to be
responsible for the funeral expenses. But for the defendant's criminally
negligent homicide of the decedent, Faulkner would not have been subjected to
those expenses. Faulkner therefore was a victim who incurred economic damages.

Finally, we consider whether Faulkner
incurred the funeral expenses "as a result of the defendant's criminal
activities." ORS 137.103(4)(b). The answer is apparent: Simply put, if
defendant had not killed the decedent, the funeral expenses at issue would not
have been incurred. Defendant nevertheless contends that, because the decedent
would someday have died anyway and would have had funeral expenses, the funeral
expenses here were not a result of defendant's criminal activity. As the state
aptly responds, however, defendant's construction of the statutes would mean
that, because everyone will die eventually, funeral expenses never could be
included in economic damages. Such a result is contrary to the legislature's
choice to include "burial and memorial expenses" in the definition of
economic damages that may be the subject of restitution. Accordingly, we
conclude that the decedent's funeral expenses were a result of defendant's act
of criminally negligent homicide.

Because Faulkner suffered economic
damages in the form of funeral expenses as a result of defendant's criminal
activities, the trial court erred when it excluded the decedent's reasonable
funeral expenses from the restitution that defendant was ordered to pay.

Reversed and remanded.

1.One of the
issues on appeal concerns the meaning of the word "victim" as used in
the restitution statute, which provides four alternate meanings of
"victim." For clarity, therefore, we refer to the victim of the
homicide as "the decedent."

3.In 2005, the
legislature amended the restitution statutes to provide for restitution for
"economic damages." Or Laws 2005, ch 564. Before those amendments,
restitution was available for "pecuniary damages," which were defined
as

"all special damages, but not general damages, which a
person could recover against the defendant in a civil action arising out of the
facts or events constituting the defendant's criminal activities and shall
include, but not be limited to, the money equivalent of property taken,
destroyed, broken or otherwise harmed, and losses such as medical expenses and
costs of psychological treatment or counseling."